2011 MBPC 32, 2011 MBPC 32

Citation # 2011 MBPC 32 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Alan Semchuk, ) for the Crown - and - ) ) Jennifer Jacqueline Krantz, ) Self-represented ) ) Judgment delivered: ) April 21, 2011 HEINRICHS, ROBERT, P.J. INTRODUCTION [ 1 ] Jennifer Krantz was charged with 20 theft and fraud related offences in the fall of 2009. The charges of theft over $5,000.00, fraud over $5,000.00, criminal breach of trust, and forgery are alleged to have been committed between April 2006 and April 2009.

The Crown alleges that between April 4, 2006 and June 9, 2007, Jennifer Krantz, while employed with the Royal Bank in Roblin, did steal from or defraud a client of Royal Bank, the sum of approximately $30,000.00. [ 2 ] As well, the Crown alleges that between June 18, 2006 and April 30, 2009, while employed by Three Way Esso in Roblin, Manitoba, as a bookkeeper, Jennifer Krantz did steal from or defraud Three Way Esso, the sum of approximately $30,000.00, which sum did include forgery of 15 cheques of Three Way Esso to a value of approximately $7,000.00. [ 3 ] Jennifer Krantz applied to Legal Aid to have a lawyer represent her on the charges.

She was denied coverage by the local Legal Aid office and subsequently unsuccessfully appealed that decision to the Executive Director and Appeals Committee of Legal Aid. [ 4 ] Jennifer Krantz then appeared before this Court in Roblin, Manitoba on August 19, 2010, and with the encouragement of the Crown, requested that this Court appoint counsel to represent her with respect to these charges. This application took place in a rural circuit court without any advance notice and prior to the charges being set for preliminary hearing or trial.

The Crown did not object to proceeding with the Application on that day and raised no issues with respect to jurisdiction. [ 5 ] The Court heard evidence by way of Jennifer Krantz being sworn and testifying. Some documents were filed as exhibits and at the Court’s request, Jennifer Krantz returned to Court on August 27, 2010 and provided further documentation and information. The Court then asked the Crown to forward to Legal Aid the transcripts and evidence of this Application to see if Legal Aid would be prepared to reconsider their decision to not appoint counsel for Jennifer Krantz.

The Crown graciously complied and provided all of the information to Legal Aid. [ 6 ] The Legal Aid Appeal Committee reviewed all of the new information and on October 21, 2010 sent a letter with enclosures to Jennifer Krantz advising that her Appeal remained dismissed and that there were no further appeals available to her within Legal Aid.

That letter with enclosures was subsequently filed on a court date in Roblin and will now be entered as an exhibit in these proceedings. [ 7 ] There was a further request by the Court for information relating to the sale proceeds of her family home and Jennifer Krantz’s letter dated March 9, 2011, together with the supporting legal correspondence which will now be entered as an exhibit in these proceedings as well. [ 8 ] As Jennifer Krantz had exhausted all avenues within Legal Aid, the Court will now rule on her application for the Court to appoint counsel for her.

THE JURISDICTION OF THIS COURT [ 9 ] The first issue to be decided is whether the Court has jurisdiction to appoint counsel at this stage of the proceedings. The timing of this particular application is unusual in that is has taken place, without any objection by the Crown, prior to an election even being made by the accused. If an election had been made, the proceedings in this Court would likely be by way of a preliminary hearing and would be so if an election were deemed by the Court. The usual avenue of a court appointment of counsel, commonly known as a

Rowbotham order, is by way of a Charter remedy pursuant to sections 7, 11 and 24. The question is whether there is authority for thisCourt to grant such an order at this stage in the proceedings. [10] For Charter applications, including Rowbotham applications, the trial court is ordinarily “the court of competent jurisdiction”. The Supreme Court of Canada in R. v. Hynes, 2001 SCC 82 , [2001] 3 S.C.R. 623, 149 C.C.C. (3d) 359 ruled that thepreliminary hearing judge is not the “court of competent jurisdiction”, however, the Rowbotham application is more in the realm of apreliminary matter. In R. v.

Valenti, ONSC 2433, Justice Fuerst reviewed some cases that have addressed this issue and she summarizedas follows: “The availability of a Rowbotham order at the preliminary hearing stage has been considered in a limited number of cases, and only withlimited success.” Her conclusion is that: “. . . while the availability of a Rowbotham order to an accused facing a preliminary hearing may not be foreclosed, it is a remedy thatcould be available in only exceptional circumstances.” [11] However, in the decision of R. v.

Cote (2002 SKQB 333), then Chief Justice Gerein of the Saskatchewan Court of Queen’sBench found that there has been a shift in how to determine if a court is a “court of competent jurisdiction” in that the Supreme Court ofCanada has moved toward a more functional approach in determining the question of jurisdiction. After analyzing some of the SupremeCourt of Canada cases to support this argument, Gerein C. J. stopped short of answering the question as to whether or not a preliminaryhearing judge can use the Charter to appoint counsel for an accused.

He instead relies on the Criminal Code and to the ancillaryauthority which exists outside of any Charter remedy: “The Provincial Court is charged with conducting the preliminary hearing and the procedure is set out in

Part XVIII of the CriminalCode. However, the court has the jurisdiction to determine how it will implement and carry out that procedure. Accordingly, while thecourt has the authority to conduct the inquiry it also has a duty to do so in a fair manner. It follows that it must have the ancillary powerto carry out that duty. If counsel is necessary to ensure fairness, then the Court must have the power to appoint counsel.” (paragraph 14) [12] As a result, Gerein C.

J. found that a judge of the Provincial Court does have jurisdiction, even at a preliminary hearing stage,to appoint counsel for an accused. [13] There appear to be no Manitoba decisions with respect to whether or not a preliminary hearing judge has jurisdiction to appointcounsel for an accused. The importance of having counsel represent an accused for more than just the trial itself, however, has recentlybeen addressed by the Manitoba Court of Appeal. In R. v. Dew (E.J.), 2009 MBCA 101, the Court addressed whether a limited retainerRowbotham order should have been made by the trial judge in that case.

It was a lengthy, complicated drug case and the Court foundthat the limited role counsel was given was not enough to ensure that the accused received a fair trial. In doing so, the Court took note ofthe important role counsel has beyond just cross-examining a witness in the context of a trial. Justice Steel wrote: “Next, I believe that the trial judge’s analysis was unduly narrow when she considered the need for legal representation only within thecontext of the courtroom itself.

Most cases also have certain strategic decisions to be made as to whether to call evidence or, in this case,whether to bring certain motions. A lawyer’s value to their client is not limited to the courtroom. Not only was Dew unrepresented forten days of what turned out to be a two-week trial, but most importantly, he did not have counsel who was capable of looking at the caseas a whole and giving him strategic legal advice as to how his case should proceed and which pre-trial motions should be taken.”(paragraph 46) [14] The Dew case had proceeded by way of direct indictment, so there was no preliminary hearing.

However, what Justice Steelsaid about the role and value of counsel outside of the courtroom (or trial) setting would have applied equally to the preliminary hearing.It is at a preliminary hearing where the strengths and weaknesses of the Crown’s case can be explored.

Knowing what line ofquestioning to pursue or not to pursue since the answers may well determine what Charter motions should be brought at the trial;knowing how to deal with expert witnesses, knowing what agreements to make and whether or not to call evidence on behalf of theaccused are all decisions that can become extremely important and significant in the ultimate verdict on each and every one of thecharges an accused faces.

It may even affect which charges or which other new charges an accused is ordered to stand trial on or isdischarged on. [15] When examining the present workload on our Provincial Court, the enormous amount of time it takes for our trial co-coordinators to set multi-day trials or preliminary hearings, and the added complications presented by an unrepresented accused, it isclear that having the issue of whether or not a potential self-represented accused is eligible for court appointed counsel decided as earlyas possible in the proceedings would be a huge benefit to the overall functioning of the Court.

While it has normally been the assignedjudge deciding the Rowbotham applications at the trial level, there appears to be no legal or practical impediment to this Court hearing anapplication to appoint counsel prior to an election for trial or preliminary hearing. [16] Given the extensive case management conferencing our Provincial Court has embarked upon in the last few years, it wouldseem that the most logical time and place to address issues relating to an accused being represented by counsel would be at any suchconferences, if not earlier.

In Manitoba, a case conference encompasses a “resolution hearing” (s. 536.3) or a “focus hearing” (s. 536.4)when a preliminary hearing has been set. It is at case management conferences where agreements are made about the number of courtdays needed, what evidentiary issues there are, what agreements can be made for the preliminary hearing or trial and so forth.

[17] There is no clear higher unequivocal precedent for deciding this application by way of a Rowbotham order pursuant to theCharter at this stage of the proceedings. Instead, this Court will rely on its ancillary authority pursuant to the Criminal Code to regulatethe course and conduct of a preliminary hearing. This Court agrees with Gerein C.J.’s decision in R. v. Cote. This Court finds that thereis jurisdiction to order that counsel be appointed for Jennifer Krantz if it is appropriate to do so in all of the circumstances.

In this case itis appropriate for this judge to become the “Case Management” judge if the need arises. SHOULD THE COURT APPOINT COUNSEL? [18] The law in Canada on state-funded counsel has developed out of the Ontario Court of Appeal case in R. v. Rowbotham, , 41 C.C.C. (3d) 1. It has been affirmed by the Supreme Court of Canada in New Brunswick (Minister of Health andCommunity Services) v. G. (J.), , [1999] 3 S.C.R. 46 and applied by the Manitoba Court of Appeal in R. v. Drury andHazard, 2000 MBCA 100 , 150 Man.

R. (2d) 64. [19] There are no reasons why the principles should not apply even if this is a non - Charter application for counsel at a preliminaryhearing stage, and so the three part test, with the appropriate modifications, will be used. The three questions to be answered in theaffirmative are: 1) Is the accused ineligible for or has he or she been refused legal aid, including exhausting all appeal rights? And, 2) Is the accused financially unable to retain counsel privately?

And, 3) Is it essential for the accused to have legal representation in order to have a fair trial and preliminary hearing? [20] Prior to answering questions one and two, the Court will review Jennifer Krantz’s history with Legal Aid and appearancesbefore this Court with respect to that application process. LEGAL AID PROCEEDINGS [21] Jennifer Krantz applied to Legal Aid Manitoba in order to have them assist her in being represented by a lawyer. The Legal Aidapplication and some supporting documentation were received by Legal Aid on about October 30, 2009.

There was furthercorrespondence back and forth in November and December, 2009 including some further financial documentation that Jennifer Krantzprovided to Legal Aid. [22] On December 16, 2009, Legal Aid provided Jennifer Krantz with their “Notice of Refusal”. It stated that Legal Aid would notbe providing her with any assistance as their calculations placed her family unit’s gross annual income at an amount in the range of$35,000.00.

Legal Aid Manitoba’s full eligibility guideline for a family unit of four is $27,000.00 gross per year. [23] There was then an unsuccessful appeal of that refusal to the Executive Director; his decision was given in January or Februaryof 2010. Jennifer Krantz had advised the Executive Director that since her initial application to Legal Aid, her employment status hadbeen changed from full time to casual status, she was now earning 73 cents less an hour and was only guaranteed 31 hours bi weeklyinstead of 77 ½ hours.

As well, she advised the Director that the family’s debts totaled more than $160,000.00 and they would likelylose their family home as a result. Legal Aid did not receive any new paystubs or documentation to support her new financial situation.As Jennifer Krantz’s husband had appealed Legal Aid’s refusal to assist him on an unrelated matter, she was advised that the ExecutiveDirector’s decision would follow their decision on her husband’s appeal.

When that appeal was unsuccessfully concluded, the ExecutiveDirector advised Jennifer Krantz that because her husband’s appeal had been denied at least partly because of the family’s financialcircumstances, that decision would also apply to her appeal to the Executive Director. [24] On about March 25, 2010, Jennifer Krantz appealed the Executive Director’s decision to the Appeal Committee of Legal Aidby writing them a letter and providing a more recent paystub.

That paystub appeared to confirm a reduction in wages and number ofhours worked; based on that paystub her gross annual income was calculated to be $25,840.88.

Her appeal was heard via teleconference.At that time she told the Appeal Committee the following: 1) their family home had been foreclosed on by the bank; 2) they still resided in that home as they were renting the house from their friends, who had purchased it from the bank; 3) they still had some outstanding debts and no assets of significance; 4) she had filed a grievance with the Union when she went from permanent to casual, but that the Union would only assistfurther if she was successful with respect to her criminal charges; and,

5) she would send Legal Aid a letter from her employer confirming her new employment status and reduced wage. [ 25 ] The Appeal Committee sent Jennifer Krantz a letter on June 1, 2010 (Exhibit #4) confirming the refusal of Legal Aid coverage. Their attached reasons stated that they were still not satisfied that she was financially eligible for Legal Aid. They were “at a loss to understand why an arms-length person would purchase the client’s homestead on foreclosure proceedings and then rent it out to the client.” They didn’t trust this “friendly ‘arrangement’”.

They also commented on the lack of documentation they had with respect to the position the Union had taken with Jennifer Krantz’s grievance, noting that they had questions about it. The Appeal Committee made no mention of the fact that with Jennifer Krantz’s reduced hours and pay she was now just within their full eligibility guideline for a family unit of four. [ 26 ] Jennifer Krantz then filled out a new application for Legal Aid on about June 17, 2010. Legal Aid replied on June 29, 2010 (Exhibit #9) stating that the facts remained the same and that she would not be getting Legal Aid assistance.

COURT PROCEEDINGS [ 27 ] Jennifer Krantz’s charges had been on remand in Roblin Provincial Court pending her getting counsel through Legal Aid. In the summer of 2010, she asked this Court for help and as a result of her request, her application for court appointed counsel commenced on August 19, 2010.

At that time she testified before the Court and the following nine documents were filed as Exhibits: #1 Shift Schedules from May 23 – Sept. 25, 2010 #2 Letter from Grandview Residential Services Inc., dated November 16, 2009 #3 Application for Information re: .4 Position #4 Letter from Legal Aid, dated June 1, 2010 #5 Letter from Parkland Regional Health Authority, dated December 10, 2009 and January 7, 2010 #6 Letter from MGEU (the Union), dated February 23, 2010 #7 Pay Advice from Parkland Regional Health Authority, dated August 28, 2009 #8 Letter, with attachments, from Fillmore Riley, dated December 7, 2009 #9 Letter from Legal Aid, dated June 29, 2010 [ 28 ] Those exhibits and the testimony of Jennifer Krantz confirm the following: 1) her hours and rate of pay have been reduced by her primary employer, the Parkland Regional Health Authority, 2) she has grieved this decision through her Union and that process is at a standstill, 3) she is under suspension at her part time employment with Grandview Residential Services Inc. until the conclusion of the criminal charges before this court, 4) she is unsure of how many days she will be called in for at her casual employment as an education assistant at the Goose Lake High School, 5) the news about her and her charges was on the radio, television and in the newspapers, which made it difficult for her to hold onto any employment or attempt to find any new employment in the Roblin area, 6) her husband is unemployed due to long term health issues and has no disability, pension or old age security income whatsoever, 7) she is the sole provider for a family unit of four, 8) in addition to her employment income, her only other sources of funding are the GST and Child Tax Benefits, 9) the two vehicles the family owns include a 1990 Astro, which is nearing the end of its unusable life, and a 1997 ½ ton GMC truck, worth perhaps $5,000.00, 10) her family’s current monthly expenses include:

a) rent $600.00

b) hydro $200.00

c) contents insurance $100.00

d) water $80.00

e) Royal Bank loan $350.00 (approx. $26,000.00 owing; paying $161.00 biweekly) These fixed expenses total $1,330.00 a month; her only guaranteed work of 31 hours bi weekly provides income of under $1,100.00 a month; and 11) as a result of all of the above, her family is struggling to survive financially. [ 29 ] Jennifer Krantz returned to court on August 27, 2010 and provided additional documentation which are filed as further Exhibits: #10 Rent Receipts for $600.00 a month for the months of April 1, 2010 – September 1, 2010 #11 Status of Title from the Land Titles Office for 413 – 3 rd Avenue, in Roblin, Manitoba [ 30 ] The further documentation and information received from Jennifer Krantz revealed the following:

a) The Royal Bank had filed a Notice Exercising Power of Sale on Jennifer Krantz’s family home and was proceeding in the Fall of 2009 with all the steps necessary to conclude their Application, including registering an Application for Order for Sale on November 13, 2009; a subsequent Order for Sale by Public Auction and Private Contract was filed by CitiFinancial Canada Inc. on December 7, 2009

b) On February 11, 2010, title to the property was transferred to Mabel and Austin Krantz and the Royal Bank registered their mortgage in the sum of $170,496.00

c) Mabel and Austin Krantz are in fact Jennifer Krantz’s mother and father-in-law, and are not simply “friends” as she had led Legal Aid to believe (and not clarified with the Court on August 19, 2010 when she testified)

d) Jennifer Krantz’s gross monthly income remained between $1,000.00 and $1,500.00 a month [ 31 ] As a result of the gathered facts the Court now had, the Crown was asked to send all of this information to Legal Aid. The Court and the Crown agreed that Legal Aid might well reconsider and now appoint counsel for Jennifer Krantz.

LEGAL AID PROCEEDINGS (PART II) [ 32 ] On September 30, 2010, the Crown’s Office sent a letter, the transcripts of the August Court proceedings, the exhibits filed and some further documentation (including more recent paystubs from Jennifer Krantz’s employment) to Legal Aid for their reconsideration of Jennifer Krantz’s eligibility for Legal Aid assistance. That letter forms part of Exhibit #12 now filed in these proceedings. [ 33 ] The response from Legal Aid to Jennifer Krantz on October 21, 2010 indicated that their decision was to refuse to provide her with legal assistance and her appeal was dismissed.

The letter also stated that there are no further appeals available to Jennifer Krantz within Legal Aid. [ 34 ] Legal Aid’s reasons for not allowing the appeal are entirely related to what happened with the foreclosure proceedings of the family home, who ended up with possession of that home and what Jennifer Krantz did, or did not, tell Legal Aid about those proceedings. [ 35 ] Although not referred to, it appears that since the Legal Aid Appeal Committee’s first decision on June 1, 2010, Jennifer Krantz directly, or at least through the Crown’s letter to Legal Aid, provided the necessary correspondence from the Union confirming that the Union would not assist her further in her grievance at this time.

As well, Legal Aid now had the necessary paystubs and financial documents to satisfy themselves that Jennifer Krantz was financially eligible for Legal Aid under their income guidelines. [ 36 ] According the Legal Aid Appeal Committee, Jennifer Krantz first told them that she was now renting her former family home

from friends who had purchased the property from the bank. As a result of her testimony in Court in August, 2009 and subsequent filing of Exhibit #11, the truth came out that the purchasers of the family home were in fact her mother and father-in-law and not just “friends”.

Legal Aid had been suspicious about how the present “arrangement” had come to be and now the Appeal Committee chose to rely on the requirement that, “Applicants are required to provide Legal Aid with complete information when requested.” As Jennifer Krantz had not been totally forthright in the beginning, the previous refusal to provide legal coverage would stand.

Would Legal Aid have had difficulty with Jennifer Krantz renting her former family home from her own family? [ 37 ] While the Court does not have the answer to this question, it is clear that Jennifer Krantz would have lost her home to foreclosure proceedings if someone, whether or not it was from within her own family, had not intervened. As well, paying $600.00 a month for rent (not including hydro) on a house in Roblin seems reasonable in all of the circumstances, whether or not the landlord is a family member.

It would seem from those observations that Legal Aid may well have appointed counsel for Jennifer Krantz had it not been for the fact that she initially misled Legal Aid about her family home situation. [ 38 ] Upon reviewing this last correspondence from Legal Aid, the Court requested more financial detail about the sale of the home, as it was not yet clear what had happened with the sale proceeds, in particular, what direct (or indirect) financial benefits Jennifer Krantz had received from the sale.

Exhibit #13 discloses that the lawyers disbursed the net sale proceeds of $157,593.30 by paying out the Royal Bank mortgage, Citi Financial, the broker, the Town of Roblin and legal fees and disbursements for a total of $148,854.66. The remaining $8,738.64 was paid to Jennifer Krantz on about February 23, 2010. The reporting letter from her lawyer advised her that out of that money all of the outstanding utility accounts needed to be paid up.

Jennifer Krantz stated that she did catch up all of her bill payments, did some necessary house repairs and purchased some clothing for her family as well as some other household items. With that, there was no remaining money. [ 39 ] According to the timeline provided by Legal Aid in Exhibit #4, Jennifer Krantz received and spent this money after she had initially applied for Legal Aid (October 30.2009), been refused Legal Aid (December 16, 2009) and appealed that decision (January 10, 2010), but before the Appeal Committee denied her appeal (May 27, 2010).

It also appears that sometime in January or February, 2010, the Executive Director confirmed or upheld the initial refusal of Legal Aid; the documentation from Legal Aid does not specify the exact date. APPLICATION OF THE THREE PART TEST [ 40 ] Is Jennifer Krantz ineligible for legal aid? Has she been refused legal aid and has she exhausted all appeal rights within the Legal Aid organization? The answer to those questions is “Yes”.

However, the case law since Rowbotham clearly sets out that the reasons for ineligibility or denial of Legal Aid coverage must be examined; the accused who is asking for the Court’s assistance to retain counsel must not have been denied Legal Aid through his or her own actions or neglect. [ 41 ] In R. v. Rawana, 2010 CarswellMan 312, 2010 MBQB 143 , 254 Man. R. (2d) 144, Keyser, J. dealt with an accused whose actions or neglect toward Legal Aid contributed to his application for Court appointed counsel being dismissed.

He had applied to Legal Aid for coverage, but then apparently never provided the follow up financial information requested of him and so his application to Legal Aid was refused. In addition to this failure, he chose not to testify before the Court to explain any of the information (or lack of information) he had given to Legal Aid, even after being encouraged to do so by the Court. He simply failed to meet the onus required of him in support of his application to the Court.

Although there were additional reasons why the Court would not appoint counsel in his case, it is clear from the Court’s examination of what happened with Mr. Rawana’s application for Legal Aid assistance that the Legal Aid process and their ultimate decision to not grant assistance is to be examined and given great deference. In Rawana the Court went on to rely on Legal Aid’s assessment of his assets to find that this accused had not satisfied the Court that “he is unable to fund his own defence”. [ 42 ] In R. v.

Assoun, 2002 CarswellNS 145, 2002 NSCA 50 , 203 N.S.R. (2d) 316, 635 A.P.R. 316, the Court faced the situation where the accused had been dishonest with Legal Aid in his original application to them. He had not disclosed that he was receiving approximately $2,000.00 of pension income a month at the time of his original application. As a result he received legal assistance for a lengthy period of time, which included a preliminary hearing, 10 days of pre-trial voir dires and 2 or 3 days of trial, before he fired his lawyer.

He was not able to have Legal Aid appoint new counsel as the false statement in his original application to Legal Aid had come to light. He was now asking the Nova Scotia Court of Appeal to appoint counsel for him on his appeal pursuant to

section 684 of the Criminal Code . The Court agreed with Legal Aid’s assessment that this accused clearly made a false statement or concealed information in applying for Legal Aid. This was in breach of

section 19 of the Legal Aid Act and the Court relies on Rowbotham that “the finding of the Legal Aid authorities on the question of financial means is entitled to great respect”. However, the Court then goes on to say that Legal Aid’s determination or finding on the issue of financial eligibility is not conclusive. In their case, the Court must still apply

section 684 and that includes making its own determination on whether or not the appellant before them has sufficient means to obtain legal assistance for the pending appeal. The Court’s discretion is still to decide to appoint counsel where Legal Aid has said “No”. This same principle applies to anyone making a Rowbotham application to a trial court. [ 43 ] In applying these cases to Jennifer Krantz’s history with Legal Aid, the Court takes note of the fact that she appears to have been honest and not concealed any information in her original application to Legal Aid.

At the time her employment situation was such that she was just over the financial eligibility guidelines and her application was refused. However, at some point in the appeal process with Legal Aid she was not completely forthright with the organization about the nature of her relationship with the individuals purchasing her home which was going through foreclosure proceedings. As well, it is also possible that Legal Aid had not been given the information about the amount of money or the date on which she received the sale proceeds of the home.

[ 44 ] When there has been dishonesty or a lack of full and candid disclosure, the cases of Rawana and Assoun remind the Court to exercise special caution and not exercise its own discretion in favour of the applicant unless there has been a subsequent full and frank disclosure. Also of note is the fact that these two cases dealt with the hiding or non disclosure of income or assets. Jennifer Krantz’s lack of frank disclosure of the nature of her ongoing rental situation and who the landlord was had nothing to do with income or assets.

In other words, Legal Aid assistance was not denied because she had hidden sources of income or assets that could have covered the costs of retaining a lawyer, but because she was not forthright about who her landlords were. [ 45 ] The Court notes that Legal Aid had legitimate questions about the foreclosure proceedings on Jennifer Krantz’s family home and how she was able to remain in the home after someone else had purchased it.

By the time Legal Aid had finally refused her last appeal in October, 2010, the documentation they now had clearly showed the sale of the home and subsequent rental payments to Jennifer Krantz’s mother and father-in-law.

Legal Aid was now relying on the fact that, “Applicants are required to provide Legal Aid Manitoba with complete information when requested.” Having concerns about this scenario and how the information regarding the sale of the home was given to them, the previous decision to deny Legal Aid assistance did not change. [ 46 ] From all of this it appears obvious that had Jennifer Krantz immediately disclosed who was buying her home out of foreclosure proceedings and how it was that she was now renting from them, at some point in time, when Legal Aid had the rest of the information, that is, the Union’s position on the grievance and her updated paystubs, counsel would have been appointed for her. [ 47 ] It is also of concern to the Court that at some point in time in February of 2010, Jennifer Krantz had some $8,000.00 at her disposal.

The correspondence from the lawyers and Jennifer Krantz’s explanation of what happened with that money is not disputed, but it is not clear from the evidence and exhibits the Court has that this was disclosed to or reviewed by Legal Aid in their appeal process. What is clear, however, is that this was not money Jennifer Krantz had available to her when she initially applied for and was refused Legal Aid in 2009. As well, the money had long since been received and spent before the appeal hearing in May, 2010.

If Legal Aid never knew that Jennifer Krantz had this money available to her at some point in the appeal process, it is safe to assume that it could only have adversely affected her appeal and added a further reason for Legal Aid to dismiss her appeal. [ 48 ] In considering all of this, the Court finds that in spite of that fact that Jennifer Krantz’s lack of forthright disclosure caused Legal Aid to not grant her appeals after the initial refusal of coverage for counsel, this is one of those situations where discretion should be exercised in her favour.

Is Jennifer Krantz financially unable to retain counsel privately? [ 49 ] The documentation provided and evidence given by Jennifer Krantz to this Court clearly shows that this accused is struggling financially. She is the sole provider for a family unit of four, and as a result of the publicity surrounding the charges she now faces, her gainful employment, wages, hours and further job prospects have all been hampered or put on hold. Her modest expenses exceed her present income and even with more work it is not likely she will soon be in a position to obtain a loan or save for a retainer to obtain counsel.

Her present assets are limited to two vehicles worth perhaps a total of $5,000.00. Her mother and father-in-law, in purchasing the family home that was in foreclosure proceedings, appear to have helped Jennifer Krantz and her family out by allowing them to continue living in the home she once owned. However, they are not under an obligation to pay for counsel for Jennifer Krantz and there is no evidence before the Court that they are in a position to do so or that they have offered to do so. [ 50 ] At some point in February 2010, Jennifer Krantz received $8,738.64 as the net sale proceeds of her family home.

There were outstanding utility bills and other bills that needed to be paid. Jennifer Krantz also did some necessary repairs to the home and purchased some clothing and household items with the remaining money. It was quickly spent. Should she have used some or all of the money to retain counsel?

In hindsight it is easy to question the choices she made at the time, however, the Court has to be mindful of the fact that Jennifer Krantz was the sole provider for a family of four and there were some immediate financial obligations. [ 51 ] With her Legal Aid appeal still pending it is understandable that she did not use whatever money was remaining to try and retain counsel at that time. She did not spend the money frivolously and it happened long before her Legal Aid appeal was denied or her application to the court for counsel to be appointed.

Given all of the circumstances, the Court is satisfied that at present she is not in a financial position to retain counsel privately. Is legal representation for Jennifer Krantz essential to her having a fair trial and preliminary hearing? [ 52 ] There are 20 theft and fraud related charges that Jennifer Krantz must defend against. Two former employers have alleged thefts and frauds that total more than $60,000.00 and all of the allegations suggest a breach of trust.

The Crown’s case is now contained in approximately six binders, filling a “Banker’s Box”, and they expect that it will take several days to put their evidence in at trial. This evidence will likely include testimony from a forensic accountant. It is a relatively complex case and at the end of the day the Crown will be seeking custody for Jennifer Krantz if she is convicted of some or all of the charges. [ 53 ] Jennifer Krantz has appeared before the Court on two separate days and provided evidence to the Court. She is a well spoken adult with good communication skills.

Could the Court (and the Crown as an officer of the Court) provide some assistance in these circumstances so that she could represent herself and get a fair trial (preliminary hearing)? In considering this, the Court must remind itself not to be overly stringent in the answering this question, and must not be too focused on what the cost of such an order would be to Legal Aid or the Government. [ 54 ] In this particular case, the Court finds that in addition to the complexities of the case, a significant relevant factor is the personal family circumstances of Jennifer Krantz.

She is the sole provider for a permanently disabled husband and two teenaged sons. To add to that, the stress of conducting her own defence in a complex case with a possible end result being her own imprisonment, is such that the Court is not satisfied that Jennifer Krantz would have a fair trial if self-represented. Could Jennifer Krantz not represent herself for just the preliminary hearing stage? [ 55 ] How the preliminary hearing is conducted may well have an impact on whether or not she is ordered to stand trial on some or

all (or other additional) charges or is discharged on some or all of the charges. As well, as was earlier noted in applying the Dew decision to the preliminary hearing stage, the decisions made there may significantly affect what motions are brought at the trial and what the ultimate verdict on each and every one of the charges is. It appears that having counsel at this stage in this particular case may well be a very important part of “looking at a case as a whole” and making those strategic decisions.

It may not hold true in every situation but the Court is satisfied that in this case, counsel should be appointed even for the preliminary hearing stage. [ 56 ] This Court therefore orders that this Province appoint counsel for Jennifer Krantz. If this were by way of a Rowbotham application and a Charter remedy, a stay of proceedings until counsel was appointed would be appropriate under

section 24. However, as this order for counsel is pursuant to this Court’s ancillary powers according to section 537 (1) (

a) of the Criminal Code , the proceedings will be adjourned from time to time until counsel is appointed. “ORIGINAL SIGNED BY:” HEINRICHS, ROBERT, P.J.